Friday, 24 September 2010

Lesbians, gays, bisexuals and transgender (LGBT) people in Asia and the Pacific Islands experience extra-judicial killings, torture, violence and rape, as well as discrimination in employment, education, housing and health services.

These are the preliminary findings of the Advisory Council of Jurists (ACJ) of the Asia Pacific Forum of National Human Rights Institutions (APF) that met August 3-5, 2010 in Bali, Indonesia. This independent body of legal experts has found that at least 17 API governments1 have failed to provide protections for LGBT people because their national laws, policies and practices are inconsistent with international human rights law.

In response to these realities for LGBT people in the region, the APF has begun the process of addressing discrimination and violence on the basis of sexual orientation and gender identity as a legitimate human rights issue requiring the attention of its member institutions that are National Human Rights Institutions (NHRIs).
The fact that protecting the human rights of LGBT people has captured the attention and become a focus for the APF is pleasantly surprising. Surprising because, only three countries in the region have laws providing explicit protection of LGBT human rights2, while nineteen countries still have laws that criminalize consensual homosexual relations3. Many of the NHRIs that are members of the APF have never discussed – let alone considered – sexual orientation and gender identity as a human-rights issue. In fact, many state officials in the region view non-heteronormative sexual orientation and gender identity as anti-religious and counter cultural.

How then did it happen that the APF arrived at this statement in support of LGBT human rights? It began in May 2009, when nine national human rights institutions in the API region became the first in the world to adopt recommendations from the Yogyakarta Principles. They issued a consensus statement affirming that the mandate of NHRIs extends to those who suffer human rights violations based on their actual or perceived sexual orientation or gender identity. They proposed that this be integrated into the work of member institutions and that respect for the Yogyakarta Principles by state and non-state actors be promoted.4

Subsequently, the APF commissioned a research paper on emerging legal concerns for LGBT people in the API region for consideration by the ACJ – a body of international human rights experts, high-level judicial officers, and legal scholars established to advise the APF on international human rights issues and standards and to develop regional jurisprudence on interpreting and applying these.

As part of its deliberations, the ACJ met with five activists from the API region to help them grasp the adverse impact of states’ failures to provide protections for LGBT people. I was among these activists, who included Siddharth Narrain from Bangalore Alternative Law Forum, John Fisher from ARC International, Joy Liddicoat from the New Zealand National Human Rights Commission, and Edmund Settle from UNDP.5 Together, we pored through pages and pages of examples in API countries where inconsistencies between international human rights standards and national laws, polices and practices deprived LGBT people of human rights protections. To address these inconsistencies, the ACJ then developed recommendations for the inclusion of sexual orientation and gender identity in the work of national human rights institutions and the national human rights action plans in API countries with membership in the APF.

On the morning of August 5, 2010, the ACJ presented its findings and recommendations on sexual orientation and gender identity to the APF. In his introduction to these recommendations, Vitit Muntabhorn6, law professor and Co-Chair of the Civil Society Working Group for a regional human rights mechanism within ASEAN (Association of Southeast Asian Nations) told the 90 participants at the APF meeting, “The ACJ has taken a soft entry point – research, dialogue, education first. We understand the sensitivity.” It was strategic on his part to try and ease any anxieties in the room and pre-empt any immediate rejection of the recommendations that followed on decriminalization and anti-discrimination–delivered by two other jurists, Justice Susan Glazebrook of New Zealand Court of Appeal, and Andrea Durbach, director of the Australian Human Rights Centre Faculty of Law at the University of New South Wales.7

I braced myself for the reactions of the room, recalling the dialogue two days earlier between some of the NHRI representatives and civil society activists of the Asian NGOs Network on National Human Rights Institutions (ANNI). In this interaction, the human rights commissioner from Bangladesh stated,

“There are human rights of different groups but as a Commission we have to address problems that have national impact. Sexual orientation has been taboo in our country. Only recently are these issues discussed in our country and that too in urban areas. This was raised in the UPR but sexual orientation is not an issue for civil society and they have not made a demand for it to be addressed so until we have dealt with other more important issues in our country we won’t be taking it up.”

In a similar vein, the chair of the Malaysian Human Rights Commission (Suhakam) said,

“Suhakam is committed to all human rights and we are not ducking the issues–for instance the unfair treatment of sexual orientation and gender identity by the media. But in candor, Suhakam is not going to be able to do anything about these issues in the next three years. Mindset and values are deep seated and these have to change and who are we to do this in three years? If we push too hard we may get a fatwa and we don’t want to antagonize the religious establishment.”

As an Asian, it is frustrating to listen to those who are supposed to be looking out for our human rights treat LGBT people as if we are second-class citizens or, as some would have it, non-existent citizens. To say that society is not ready to accept sexual and gender diversity and to reject decriminalization and inclusion of LGBT people because it against Asian cultural or religious values echoes the rhetoric that these same institutions used when they were asked to protect women’s right to equality, and the right of women to be defenders of their human rights, and be entitled to state protection from violence and discrimination. As for dismissing violations against LGBT people in favor of dealing with poverty, this ranking of rights and human rights violations contradicts the human rights principle of indivisibility, interdependence and inter-relatedness of rights. It amounts to saying that LGBT people should have to pay a price for their non-conformity and be told that that they have no legitimate claim to the rights that other people have because they are somehow responsible for the inequalities they face. Across the age span, many LBGT youth and LGBT elders experience poverty. The inequalities they face when they are poor intersect with the inequalities they face because of their sexual orientation and gender identity. Race, caste, ethnicity “increase the layers of discrimination.”8 Governments or development NGOs often ignore these facts.

Surprisingly, after the ACJ presented its recommendations, there were no negative responses from the human rights commissioners and other officials in the room. Those who were opposed remained silent. Those who were uncertain expressed anxiety and frustration more than rejection. A commissioner from the Palestine Human Rights Commission captured this sentiment best:

“[i]n our region we know nothing about these issues, and it is difficult to put them on our agenda and to have an internal discussion within members of our Human Rights Commission, to even articulate among ourselves. Despite the fact that we have principles of equality and very nice human rights standards in our laws but we have to be realistic. This subject is taboo for many staff of the Human Rights Commission, and there [are] too many constraints internally. So the first step is having discussions within our own Commission. We can’t go further than this. It’s true, in order to be consistent with international human rights standards, we cannot close our eyes to what is a human rights issue. And we have to be courageous to start but we also have to be sensitive.”

This sort of statement as well as statements during the ANNI exchange with civil society activists, left me feeling somewhat skeptical, with many questions swimming in my head. I wonder if words like “sensitive” will become code for silence, and if NHRIs who oppose LGBT human rights will dismiss the ACJ recommendations as culturally and politically irrelevant and do nothing. Will NHRIs who naively believe there are no LGBT people in their country, or that there is no discrimination against LGBT people in their country, fail to create physically and emotionally safe spaces for LGBT people with complaints to come forward? Will coming forward then result in recriminations for revealing their sexual orientation? I wonder if the ACJ’s incremental approach may result in NHRIs not going beyond the starting point. Will resources be used up to increase the internal capacity of NHRIs to address the concerns of LGBT people without actually utilizing that capacity to protect the rights of LGBT people in need? I fear the ACJ’s recommendation for NHRIs to undertake research into the human rights violations experienced by LGBT people may become an end in itself. The last thing we need is research findings that fail to be translated into advocacy and action.

Mostly, I wonder if there will be enough political will and clout to carry out the more urgent recommendations of the ACJ that NHRIs should:

take on monitoring of violations based on sexual orientation and gender identity,

carry out human rights education and awareness raising activities,

hold dialogues with LGBT groups and individuals,

advocate for the rights of people of diverse sexual orientations or gender identity,

advocate for the removal of laws that violate the human rights of LGBT people,

ensure that all laws are applied in a non-discriminatory manner.

The findings and recommendations of the Advisory Council of Jurists presented to the Asia Pacific Forum of National Human Rights Institutions (APF) during its August 2010 meeting in Bali, Indonesia were significant. As I shared in the first part of this review, it was a major achievement for this independent body of legal experts to conclude that at least 17 API governments have failed to provide protections for LGBT people because their national laws, policies and practices are inconsistent with international human rights law. In response the ACJ is recommending that national human rights institutions take on issues of sexual orientation and gender identity and ensure the compliance of national laws and policies with international human rights protections for LGBT people in a way that involves the participation of LGBT groups and individuals.

For me, so much rides on the NHRIs effectively implementing the ACJ recommendations since the API region lacks a regional human rights monitoring entity (even the credibility of the newly-formed ASEAN Commission on Human Rights (ACHR) is uncertain). In addition, access to international human rights entities such as the United Nations is limited, not only because the UN is so far away, but also because people whose rights are being violated, have limited access to these avenues for redress – assuming redress is possible.

However, since the APF and the ACJ have no enforcement mechanism or power, it is unclear what will happen if these recommendations are not implemented—for instance, in the name of religion or cultural values. Since there is no centrally imposed penalty or peer pressure for weak or non-implementation of international human-rights standards, how will disregard for the ACJ recommendations be addressed in a productive way?

The independence of the national human rights institutions is critically important. According to the Paris Principles,9 which serve as criteria for the effectiveness of NHRIs, national institutions should have a clearly defined but broad-based mandate defined by legislative decree or the constitution. They must remain independent from government, have membership that reflects the composition of society, work in close cooperation with civil society and NGOs, and be adequately resourced by the state to carry out their work as NHRIs. But, according to Emerlynne Gill, coordinator of the ANNI Network, which monitors the performance of NHRIs in Asia, in most Asian countries members of NHRIs are chosen either only by the President, the Prime Minister, or by “a select group of like-minded people, which often results in appointments that are not based on human rights expertise.” Gill says that many NHRIs in the region lack pluralism in their composition and transparency in the selection process, which she feels are “two pivotal elements for ensuring the independence and effectiveness of NHRIs [while] minimizing the danger of neglecting less mainstream issues which may be affecting groups considered to be minorities in the country.”

Putting the ACJ recommendations into operation really requires independence from government. This is particularly so when one considers that many government officials and human-rights groups consider sexual orientation and gender identity issues to be inconsequential compared with poverty and lack of housing as if LGBT people don’t also face poverty and homelessness. Some religious and culturally conservative people even argue that LGBT people have no human rights, or that they are not human.

One hopeful reminder in this somewhat bleak picture – from Thai activist Paisarn Likhitpreechakul – is that strong leadership can determine how effectively an NHRI performs. For instance, the National Human Rights Commission of Thailand became a strong ally of LGBT activists under the leadership of a previous commissioner, Naiyana Supapung. Commissioner Supapung made great strides in promoting sexual diversity and respect for LGBT people, finding resources for the work of LGBT human rights groups, and changing the understanding of human rights within the NHRI.

Another hopeful reminder is that in some Asian countries, despite the state’s reluctance to decriminalize same sex relations and gender diversity, there is also no desire to see people being mistreated because of their sexual orientation and gender identity. NHRIs can also find support from civil society when faced with cultural and religious hardliners who try to shut them down.

Courts can also set the tempo for change. Siddharth Narrain and Arvind Narrain note in their background paper for the APF on emerging legal concerns for LGBT people in the API region, that despite the barriers to human rights for LGBT people, the judiciary has been a “pro-active force.” They point to key decisions by the Superior Courts in Australia (Toonen), Philippines (Ang Ladlad), Korea (National Human Rights Commission of Korea), Nepal (Sunil Babu Pant) and India (Naz Foundation) as being “instrumental in signaling greater respect for the rights of LGBT people.” More importantly, these court decisions send a message that the protection of LGBT people’s rights is as the APF is trying to point out, “entirely consistent with so-called Asian values.”

Notes

1. These governments of 17 countries have national human rights institutions (NHRIs) that are members of the Asia Pacific Forum. They are Afghanistan, Australia, India, Indonesia, Jordan, Malaysia, Maldives, Mongolia, Nepal, New Zealand, Palestine, Qatar, Republic of Korea, Sri Lanka, Timor Leste, Thailand and the Philippines. They have all agreed to abide by the Paris Principles of 1991, which formalized the role of NHRIs and outline the mandate of NHRIs as human rights protectors.
2. New Zealand, Fiji and Taiwan have national laws prohibiting discrimination on the basis of sexual orientation or gender identity.
3. Afghanistan, Bangladesh, Brunei, Bhutan, Burma, Malaysia, the Maldives, Pakistan, Singapore, Sri Lanka, Cooks Islands, Kiribati, Nauru, Palau, New Guinea, Samoa, Solomon Islands, Tonga, and Tuvalu.
4. The consensus statement was issued at the end of a workshop convened by the APF on the Yogyakarta Principles. Attended by representatives from nine national human rights institutions (NHRIs)— from Australia, Indonesia, Jordan, Malaysia, Nepal, New Zealand, Palestine, South Korea, and Thailand, the goals were: to build understanding of the principles; to consider the contexts for the implementation and their relevance to the work of the human rights institutions in the region; and to exchange information on how NHRIs were promoting and protecting the rights of LGBT people. Representing IGLHRC I was invited to talk about the conditions facing LGBT people in the region, and had the opportunity to meet and listen to international human rights experts who were intimately involved with the birth of the Yogyakarta Principles.
5. I highlighted experiences of LGBT people in the API region-cultural relativism, uneven application of laws, hierarchy of rights, and the contradictory policies around legislating the private realm. Siddharth Narrain presented highlights of the background paper commissioned by the APF on emerging legal concerns for LGBT people in API countries, John Fisher spoke about why and how the Yogyakarta Principles have taken off internationally. Joy Liddicoat shared the struggles around law reform undertaken by the New Zealand Human Rights Commission. Edmund Settle spoke about the impact of punitive laws on men who have sex with men in the API region.
6. Vitit Muntabhorn, professor in the Law Faculty at Chulalongkorn University in Thailand and also served as the United Nations Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, and is currently the UN Special Rapporteur on the Situation of Human Rights in the Democratic Republic of Korea.
7. There are currently nine members in the Advisory Council of Jurists. In addition to Vitit Muntabhorn, Susan Glazebrook, and Andrea Durbach, there are Seong-Phil Hong, Associate Professor of International Law and Human Rights at Yonsei Law School in South Korea; Amarsanaa Jugnee, Director of the Center for Comparative and International Law at the National University of Mongolia School of Law; Enny Soeprapto a former commissioner on the Indonesia Human Rights Commission; Mohamed Olwan, a lawyer from the Jordanian Human Rights Commission, and Ranita Hussein, a lawyer from Suhakam, the Malaysia Human Rights Commission.
8. “Reinterpreting Human Rights Principles,” Claiming Rights, Claiming Justice - A Guidebook on Women Human Rights Defenders, Asia Pacific Forum on Women, Law and Development, 2007.

Part II Footnote

9. In 1991 the United Nations hosted a meeting in Paris involving representatives of national human rights institutions from around the world. The aim of the meeting was to develop a comprehensive set of principles to guide the establishment and operation of national human rights institutions. The Principles Relating to the Status and Functions of National Institutions for the Promotion and Protection of Human Rights – commonly known as the ‘Paris Principles’ – set out the minimum standards required by national human rights institutions to effectively fulfill their role. These Principles form the basis for accreditation of national human rights institutions at the international level by the International Coordinating Committee. The outcome of the accreditation process determines whether a national human rights institution can participate in the regular sessions of the United Nations Human Rights Council. The Paris Principles have been endorsed by the UN Commission on Human Rights (Resolution 1992/54 of 3 March 1992) and the UN General Assembly (Resolution 48/134 of 20 December 1993, annex).